Colette Robertson and Carter Robertson, Individually and on Behalf of Their Minor Child, Carter Robertson, Jr. Versus Boomtown Belle Casino, J & J Exterminating of New Orleans, and Xyz Insurnce Company ( 2023 )

COLETTE ROBERTSON AND CARTER NO. 22-CA-184
ROBERTSON, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD, CARTER FIFTH CIRCUIT
ROBERTSON, JR.
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
BOOMTOWN BELLE CASINO, ET AL
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 771-479, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING
February 01, 2023
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Hans J. Liljeberg
AFFIRMED
HJL
SMC
DISSENTS WITH REASONS
MEJ
COUNSEL FOR PLAINTIFF/APPELLANT,
COLETTE ROBERTSON AND CARTER ROBERTSON, INDIVIDUALLY AND
ON BEHALF OF THEIR MINOR CHILD, CARTER ROBERTSON, JR.
Harold D. Register, III
COUNSEL FOR DEFENDANT/APPELLEE,
LOUISIANA - 1 GAMING, A LOUISIANA PARTNERSHIP IN COMMENDAM
D. Russell Holwadel
Kyle M. Truxillo
LILJEBERG, J.
Plaintiffs, Collette and Carter Robertson, individually and on behalf of their
minor child, Carter Robertson, Jr., seek review of the trial court’s January 4, 2022
judgment granting the motion for summary judgment filed by defendant,
Louisiana-1 Gaming, A Louisiana Partnership-in-Commendam (hereinafter
referred to as “Boomtown”), and dismissing plaintiffs’ claims against Boomtown
with prejudice.1 For reasons stated more fully below, we affirm the trial court’s
judgment.
FACTS AND PROCEDURAL BACKGROUND
On or about June 21, 2016, at approximately 3:00 p.m., plaintiffs checked
into a hotel room at the Boomtown New Orleans Casino Hotel with their infant
son, who was nine or ten months old at the time. Plaintiff, Collette Robertson,
testified at her deposition that she, her husband and their son then went to the
dinner buffet and returned to their room approximately two hours later.
Plaintiffs woke up at approximately 4:00 a.m. on June 22, 2016, and Ms.
Robertson felt something biting her on her chest. She initially thought it was a
mosquito, but after Mr. Robertson turned on the lights, Ms. Robertson discovered
ants crawling on herself, her husband and her son, who was sleeping between them
in the bed. Ms. Robertson testified that she abruptly jumped out of the bed and
picked up her son straining her back in the process. Ms. Robertson testified that
there were 10 to 20 ants on her. She did not know the number of ants on her son,
but she testified that they were all over him. She stated her son had ant bites all
over his body.
Shortly thereafter, Ms. Robertson went downstairs to the front desk to report
the incident. She testified that a clerk came upstairs and saw ants in the bed and on
1
Plaintiffs filed suit against “Boomtown Belle Casino” in its petition for damages. “Louisiana-I Gaming LP” filed
an answer to the petition indicating that it was incorrectly referred to as “Boomtown Belle Casino.”
22-CA-184 1
the floor. During that time, they discovered red candy or juice on the carpet behind
the nightstand and saw a trail of ants coming from that area. The clerk then
relocated plaintiffs to another room and provided complimentary buffet tickets.
Ms. Robertson testified that they also received money to play the blackjack table.
She stated they declined an offer from the hotel to accommodate them with a suite.
Ms. Robertson testified that she did not see any ants in the room when they
first checked in or when they returned to the room after dinner. She also testified
that the room was clean when they arrived. Furthermore, during the two hours
before they discovered the ants, Ms. Robinson testified that their son was sleeping
in the bed with them, but he woke up crying and they were trying to soothe him.
She explained that they gave him a bottle, changed him, and walked around the
room with him. She testified that they did not notice any ants on him during this
time.
On April 26, 2017, plaintiffs filed suit against Boomtown, as the owner of
the property, as well as other defendants, seeking to recover damages resulting
from the incident with the ants. After conducting extensive discovery over a four-
year period, Boomtown filed a motion for summary judgment on October 25,
2021, seeking the dismissal of plaintiffs’ claims. In its supporting memorandum,
Boomtown argued that plaintiffs could not establish a claim against it pursuant to
La. C.C. art. 2317.1, because they could not prove that Boomtown knew or should
have known of the presence of ants in the room prior to the incident, particularly
since plaintiffs did not report the presence of any ants until 12 hours after they
checked into the room.
Boomtown further argued that it exercised reasonable care in insuring the
safety of its patrons by contracting with co-defendant J&J Exterminating Company
of New Orleans, LLC (“J&J”) to regularly treat the rooms for pests. Boomtown
entered into a contract with J&J indicating that it agreed to inspect, treat and
22-CA-184 2
eliminate pests, including ants. The contract provided for hotel rooms to be treated
on a monthly basis, and further provided that treatments were designed to eliminate
ant activity before it begins. Boomtown argued that J&J never reported the
presence of ants to Boomtown prior to plaintiffs’ stay. Immediately following the
incident, Boomtown made an emergency call to J&J, which treated the room for
ants at 9:00 a.m., just hours after plaintiffs’ initial complaint.
Boomtown also presented evidence establishing that all housekeeping,
cleaning and inspections related to the hotel rooms were contractually delegated to
its housekeeping contractor, co-defendant Full Service Systems Corporation
(“FSS”). The contract required FSS to promptly notify Boomtown of any
conditions affecting guest safety. Boomtown argued that FSS did not report the
presence of ants or any other unsafe conditions in plaintiffs’ room prior to their
stay. Boomtown also argued that despite four years of discovery, plaintiffs could
not present any evidence to establish that Boomtown failed to conform to the
applicable standard of care or breached any duty to establish a general negligence
claim.
In opposition to the summary judgment motion, plaintiffs argued that
Boomtown cannot escape liability because its entire argument attempts to shift
blame to third parties who were allowed to operate with absolutely no guidance
from Boomtown. Plaintiffs argued that Boomtown should have known about the
ants located in the room because it failed to exercise reasonable care by not
establishing its own guidelines and procedures for the cleaning and inspection of
its hotel rooms. Plaintiffs also argued that Boomtown’s own safety and risk
managers did not inspect the rooms to insure that J&J and FSS fulfilled their
contractual obligations. Further, plaintiffs argued that Boomtown did not provide
any documentation to establish that J&J or FSS inspected the room prior to their
stay.
22-CA-184 3
On December 6, 2021, the trial court held a hearing on Boomtown’s motion
for summary judgment. At the hearing, plaintiffs argued that Boomtown did not
have guidelines in place to determine whether or not the rooms are cleaned
properly. However, Boomtown pointed to deposition testimony from its Director
of Hotel Operations, Quintina Tate, who stated that she did do inspections of
rooms after they were cleaned on occasion.2 Boomtown further argued that
plaintiffs did not produce any evidence to establish that it knew about the ants prior
to the incident and that the agreements in place with J&J and FSS established that
Boomtown exercised reasonable care.
Following oral argument, the trial court granted Boomtown’s motion for
summary judgment finding that Boomtown did not have knowledge of the ants,
and that it acted reasonably by contracting with FSS to clean the hotel rooms and
by inspecting the cleanliness of the rooms. The trial court signed a written
judgment on January 4, 2022. Plaintiffs filed a motion for suspensive appeal on
February 3, 2022, and the trial court granted the appeal on February 9, 2022.
LAW AND DISCUSSION
Appellate courts review a judgment granting a motion for summary
judgment de novo using the same criteria governing the trial court’s consideration
of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363
(La. 11/29/06), 950 So.2d 544, 547. After an opportunity for adequate discovery, a
motion for summary judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
The burden of proof rests with the mover, unless the mover will not bear the
burden of proof at trial on the issue before the court on summary judgment. La.
C.C.P. art. 966(D)(1). In that instance, the mover need only show the court the
2
Ms. Tate testified pursuant to La. C.C.P. art. 1442 as a designated representative of Boomtown.
22-CA-184 4
absence of factual support for one or more essential elements of the adverse party's
claim. Id. The burden is then on the adverse party to establish factual support
sufficient to demonstrate the existence of a genuine issue of material fact or that
the mover is not entitled to judgment as a matter of law. Id.A material fact is one that “potentially ensures or precludes recovery, affects
a litigant’s ultimate success, or determines the outcome of the legal dispute.”
Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876,
882, cert. denied, 574 U.S. 869, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). A
genuine issue of material fact “is one as to which reasonable persons could
disagree; if reasonable persons could reach only one conclusion, there is no need
for trial on that issue and summary judgment is appropriate.” Id.In this appeal, plaintiffs argue that the trial court erred by granting summary
judgment due to the existence of genuine issues of material fact. Plaintiffs contend
that they presented evidence of genuine issues of material fact to establish that
Boomtown failed to exercise reasonable care over the hotel room in violation of
La. C.C.P. art. 2317.1, and that Boomtown was negligent under the duty-risk
doctrine.
A hotel owes a duty to its patrons to exercise reasonable and ordinary care
including maintaining the premises in a reasonably safe and suitable condition.
Rayfield v. Millet Motel, 15-496 (La. App. 5 Cir. 1/27/16), 185 So.3d 183, 187.
The owner is not an insurer of the safety of a guest, but must only exercise
reasonable care to see that the premises are safe for the occupants of rooms in the
establishment. Id.La. C.C. art. 2317.1 provides that the owner or custodian of a thing is
answerable for damage caused by its defect only upon a showing that they knew,
or in the exercise of reasonable care, should have known of the defect which
caused the damage, that the damage could have been prevented by the use of
22-CA-184 5
reasonable care, and that they failed to exercise such reasonable care. Bryant v.
Ray Brandt Dodge, Inc., 19-464 (La. App. 5 Cir. 3/17/20), 292 So.3d 190, 197.
Thus, to recover for damages caused by a defective thing, the plaintiff must prove
the following: (1) the thing was in the defendant's custody or control; (2) the thing
contained a defect which presented an unreasonable risk of harm to others; (3) the
defendant knew or should have known of the defect; and (4) the defective
condition caused the damage. Id. If the plaintiff fails to provide any one of these
elements, the claim fails. Id.Under the duty-risk analysis adopted by Louisiana courts, a plaintiff must
establish the following in order to prevail on a general negligence claim: (1) the
defendant owed a duty to conform its conduct to a specific standard of care; (2) the
defendant failed to conform its conduct to the appropriate standard of care; (3) the
defendant’s substandard conduct was a cause of the plaintiff’s injuries; and 4) the
plaintiff suffered damages. Kennedy v. Red River Entertainment of Shreveport,
LLC, 51,760 (La. App. 2 Cir. 12/13/17), 245 So. 3d 1098, 1104.
We agree with the trial court’s finding that plaintiffs did not present
evidence of genuine issues of material fact to establish that Boomtown failed to
exercise reasonable care with respect to the condition of the hotel room, and
therefore, should have known about the presence of ants. We first observe that Ms.
Robertson reported that the hotel room was clean upon their arrival, and they did
not see any ants until 12 hours after they checked into the room. Furthermore,
Boomtown entered into contracts with housekeeping and exterminating companies
to regularly treat, inspect and clean the hotels rooms. Boomtown’s Director of
Hotel Operations, Quintana Tate, testified that FSS inspects and cleans the hotels
rooms on a daily basis. Plaintiffs attempt to create a genuine issue of material fact
by arguing that Boomtown did not check to insure inspections and cleaning were
properly done. However, plaintiffs fail to recognize that the trial court cited to
22-CA-184 6
testimony from Ms. Tate indicating that Boomtown also inspected the rooms
periodically. Contrary to plaintiffs’ arguments, we do not find that Boomtown was
required to inspect, treat or clean the hotels rooms itself on a daily basis in order to
meet its obligation to exercise reasonable care. Plaintiffs also contend that
Boomtown failed to act reasonably because it did not have a specific procedure in
place for FSS’s employees to inspect for ants. However, Boomtown’s contract
with FSS specifically provided for FSS’s employees to immediately report any
conditions in the rooms affecting guest safety.
Accordingly, because plaintiffs failed to present evidence to demonstrate the
existence of a genuine issue of material fact, the trial court did not err by
dismissing plaintiffs’ claims filed pursuant to La. C.C. art. 2317.1. For the same
reasons, we find that the trial court did not err by finding that plaintiffs failed to
present any evidence of sub-standard conduct or breach of a duty owed by
Boomtown to plaintiffs to establish a negligence claim. As stated above, while
Boomtown was required to exercise reasonable care to maintain the premises in a
safe condition, it is not the insurer of plaintiffs’ safety and is not liable every time
an accident occurs.
In a case also involving ants, Searile v. Ville Platte Med. Ctr., LLC, 15-1183
(La. App. 3 Cir. 6/1/16), 194 So.3d 1205, two days after the plaintiff was admitted
into the hospital’s intensive care unit, a nurse noticed ants crawling on the
plaintiff’s arm and in her bed. The nurse removed the ants and administered
medications to alleviate pain and itching from the ant bites. The plaintiff filed a
lawsuit alleging the hospital failed to maintain a clean and safe facility. In
response, the hospital moved for summary judgment alleging the plaintiff would be
unable to meet her burden of proof under La. C.C. art. 2317.1, and she would be
unable to prove that the hospital was negligent or breached any duty owed to the
plaintiff. The district court granted summary judgment and the Third Circuit
22-CA-184 7
affirmed, finding that the plaintiff had failed to present any evidence to show that
she could satisfy her burden of proof at trial of establishing that the hospital knew
or should have known of the presence of ants, or failed to exercise reasonable care:
[T]here was evidence that Mercy Regional regularly surveyed the
hospital and had a pest control contract in place for the eradication of
pests. . . [T]he Director of Plant Operations . . . testified that Mercy
Regional maintained a pest control service contract which provided
monthly services for the eradication of pests. Additionally, . . . [the
director of plant operations] and [Quality Director and Assistant
Director of Nurses] attested that notwithstanding [the plaintiff's]
incident, there were no complaints of ants in and around the facility
prior to [the date of the claimant's injury]. We, therefore, agree with
the trial court's finding that [the plaintiff] failed to present evidence
showing that she could satisfy her burden of proof at trial[.]
Id. at 1212.
Considering the foregoing, we affirm the trial court’s judgment granting
defendant Louisiana-1 Gaming, A Louisiana Partnership-in-Commendam’s motion
for summary judgment and dismissing plaintiffs’ claims with prejudice.
AFFIRMED
22-CA-184 8
COLETTE ROBERTSON AND CARTER NO. 22-CA-184
ROBERTSON, INDIVIDUALLY AND
ON BEHALF OF THEIR MINOR CHILD, FIFTH CIRCUIT
CARTER ROBERTSON, JR.
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
BOOMTOWN BELLE CASINO, ET AL
JOHNSON, J., DISSENTS WITH REASONS
I, respectfully, dissent from the majority opinion in this matter. Upon de
novo review, I find that there are genuine issues of material fact remaining for the
issue of whether Louisiana-1 Gaming, A Louisiana Partnership-in-Commendam
(hereinafter referred to as “Boomtown”) exercised reasonable care over the hotel
rooms on its premises in accordance with La. C.C. art. 2317.1.
The majority finds that Boomtown was not required to inspect, treat, or
clean the hotels itself on a daily basis in order to meet its obligation to exercise
reasonable care. The majority references the deposition testimony of Boomtown’s
Director of Hotel Operations, Quintana Tate, to support the position that
Boomtown exercised reasonable care by inspecting its rooms periodically.
However, I find that Ms. Tate’s testimony does not support that position. When
questioned about Boomtown’s inspections of the hotel rooms, Ms. Tate provided
the following answers, in pertinent part:
Q. Okay, Are there any -- so whenever they do the
inspections -- they meaning the staff at [Full Service
Systems Corporation], do you walk in there with
them, while they conduct inspections of the hotel
rooms?
A. No, I do not.
Q. Okay. Do you go in there beforehand and say, “Hey,
this needs to be cleaned, you need to go ahead and
concentrate on this area at all”?
22-CA-184 1
A. No.
Q. After they leave out and say they [sic] they’re clean,
do you go in there and inspect after that to see, make
sure that they did everything correctly?
A. No.
Q. Okay. So it’s safe to say that, as the direct of hotel
operations on Boomtown’s hotel, you do not conduct
any inspections within the hotel rooms located on
hotel -- Boomtown’s hotel. Correct?
A. I would do -- I would do inspections, but I don’t do
daily inspections. So I can opt to go any day and
say, yes, I want to inspect some rooms, but I’m not
-- that’s not part of my daily duties, to inspect the
turned rooms.
***
Q. But there’s no policy, by Boomtown or [Full Service
Systems Corporation], to your knowledge, to inspect the --
the housekeeping to inspect for ants inside of a guest’s room.
Correct? On Boomtown’s property?
A. Not at this time, no.
Q. Okay. And not at this time, either, at June 22nd,
2016. Correct?
A. Not to my knowledge.
***
Q. -- as they -- as they’re doing their housecleaning
duties, how can you then ensure, as director of hotel
operations, that the particular hotel rooms are free
from ants?
A. So what you’re asking me is how do I know that a
hotel room is free of ants? Is that your question?
Q. Right.
A. I do not know.
Additionally, Ms. Tate testified that she was not employed at that Boomtown
property on the date of the incident and had no knowledge of a prior inspection of
the room in question by a Boomtown employee.
22-CA-184 2
Ms. Tate’s testimony failed to provide any information regarding a
procedure of how Boomtown ensured that Full Service Systems Corporation and
J&J Exterminating Co. fulfilled the obligations of their contracts while servicing
its premises. Furthermore, her testimony concerning her sporadic inspections of
Boomtown’s hotel rooms is inconsequential because she was not employed at the
property on the date of the incident and had no knowledge of Boomtown’s policies
for room inspections at that time.3 Thus, in my opinion, the question still remains
as to whether Boomtown met its obligation to exercise reasonable care over the
hotel rooms on its premises in accordance with La. C.C. art. 2317.1. Additionally,
there is a remaining issue as to whether Boomtown is liable to the plaintiffs under
La. C.C. art. 2320. Therefore, at this juncture, I find that Boomtown is not entitled
to summary judgment as a matter of law.
Accordingly, I would reverse the summary judgment in favor of Boomtown
and remand the matter for further proceedings.
3
Boomtown’s lack of a procedure in place to ensure that Full Service Systems Corporation and J&J
Exterminating Co. fulfilled their contractual obligations distinguishes this case from Searile v. Ville Platte Med.
Ctr., LLC, 15-1183 (La. App. 3 Cir. 6/1/16), 194 So.3d 1205. In Searile, the record contained evidence that Mercy
Regional regularly surveyed the property. The record in this matter does not contain such evidence.
22-CA-184 3
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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22-CA-184
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HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
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